Critical Issues About Critical Habitat

Today my KU Biodiversity Law students explored environmental permitting and endangered species law. Here are their observations:

This afternoon we focused on endangered species on Saint Thomas. After Hurricane Marilyn hit the island in 1995, 95% of structures on Saint Thomas were heavily damaged. In response to the housing crisis that ensued, the Federal Emergency Management Agency ("FEMA") began construction of a temporary public housing unit on a patch of land next to the high school on the east end of the island. This patch of land happens to be habitat for the Virgin Islands Tree Boa, listed as endangered under the federal Endangered Species Act ("ESA"). Naturally, litigation followed, much to the surprise of everyone on the island, FEMA was eventually ordered to tear down the public housing and reforest the area. Seven years later, however, the same patch of land has again been bulldozed, this time to house a sports complex at the high school.

Protection of this patch of VI Tree Boa habitat has been frustrated by a number of issues. Not only do many local residents lack an interest in habitat protection, but corruption of decision-makers also appears to be rampant. Legal obstacles also abound. Access to the patch of land has been routinely denied to those involved in litigation efforts, preventing scientific surveys that would determine whether it is indeed Boa habitat. And, there remains a legal question over whether critical habitat for the VI Tree Boa need even be designated. The VI Tree Boa was listed before the 1994 amendments to the ESA, which requires designation of critical habitat whenever a species is listed as endangered. There have been, to our knowledge, no rulings on whether this amendment applies retroactively to species listed before its enactment. If this patch of land were designated as critical habitat, construction of the sports complex would violate the ESA. Without this designation, litigators face the aforementioned problems of lack of interest on the part of the population and corruption of local officials.

Stay tuned for more Biodiversity Law news tomorrow.